Editor’s Note: Changes made on December 14, 2017
Divorces are never easy and can get messy. You should make every effort to avoid this unfortunate event, which occurs for 40 to 50 percent of U.S. marriages.1 But if you’re in an unhealthy relationship, it may be time for a change.
Whatever reasons you have for filing for divorce, it is a decision that should be made independent of emotion. Divorce decisions should only be made after you weighed all your options and are prepared to fight for your assets and custody of your children.
Every situation is different, but we’ve broken down the four essential questions you must ask yourself before proceeding with a divorce filing. As with any major life decision, a little thought and preparation can make a tremendous difference down the road.
Have I Tried to Repair the Relationship?
Is divorce your best resolution? If the current state of your marriage is non-abusive but making you unhappy, you should seek professional help to determine whether you are going through a rough patch or whether ending your marriage is the only way to move forward. If personal issues are affecting your marriage, you may end up finding the same issues in future relationships if you do not address the root of your unhappiness. Consider these steps to repair your relationship before seeking a divorce.
- Identify main conflict points: There is no perfect marriage. However, as psychologists suggest, there are things you can do to improve your relationship. A recent study concluded stress can cause even the strongest marriages to crumble.2 If stress is a conflict point in your marriage, counseling can be a valuable tool to help. Whether it’s stress or financial concerns, by identifying the main conflict points in your marriage you may be able to tackle these issues and resolve your marital problems before resorting to divorce.
- Seek outside guidance: If you struggle to communicate and remove emotion from your marital conflicts, you may benefit from bringing in a third party to help. Whether you choose a therapist, counselor, Pastor, Rabbi, Imam, or anyone else, a respected outside voice to facilitate communication with your spouse can make a tremendous difference, and may help repair your relationship.
- Try to improve communication: Communication is essential to any strong relationship, but not just any small talk will suffice. Meaningful conversations, where couples continue to get to know one another, is the kind of communication that will make a relationship last. Many couples complain that after a few years the conversation is centered around to work, chores, and the children, as opposed to when they first got together and it involved more varied and interesting topics. Psychologists suggest that the solution to resorting to the mundane in relationships can be remedied with novelty,2 variety, and surprise. You may find that improving your communication may increase your happiness.
- Is this a phase, or an unsolvable difference? Whether you went to counseling together or sought counseling on your own, you will want to determine whether your marriage is salvageable or if your conflicts can only be fixed through a divorce. If after trying to work out your marital problems there is no solution but divorce, you must prepare yourself for the next steps and be as informed as possible. Surround yourself with a network of support and seek legal advice before any major decision. Next, you will want to determine whether to stay in or move out of your marital home.
If you’ve decided you want a divorce, your decision to leave or stay in your home can have serious implications. The safety of you and your children is most important, but if you’re not in any immediate danger, you should speak with an attorney before leaving your home, as it could affect your custody hearing. However, if you are in an abusive relationship you must take the necessary steps to remove yourself (and your children) from danger. The American Bar Association reports that Divorces often bring on an increase in such violence – 50 percent of serious assaults occur at or after the point of separation.3
- Are you in a victim of domestic violence?: Domestic abuse is different in every relationship but is never acceptable, nor something anyone should have to endure. There are some warnings and red flags which the National Domestic Violence Hotline identifies to help you determine whether or not you are in an abusive relationship.4 If you are a victim of domestic abuse, the law is on your side, and there are many resources to help you.
- Contact the National Domestic Violence Hotline: The National Hotline can help you find a path to safety. The number for the hotline is 1-800-799-7233.5
- File a restraining order: You may want to consider a restraining order or asking a judge to order the abusive spouse to move out. However, keep in mind that a restraining order may be limited in scope. If you chose to leave and take your children you should consult a lawyer to obtain a court order for custody. Otherwise, kidnapping accusations may arise.
- Consult an attorney to discuss the domestic abuse: The attorney you consult should address the following questions to determine your best course of action.6 Take the time to provide honest and detailed responses.
- Are you ever frightened of your spouse?
- Do you feel safe at home?
- Does your spouse throw objects?
- Are you allowed to spend time with family members and friends?
- Do you have access to spending money?
- Moving out in non-violent relationships: Moving out of your home without talking to an attorney could hurt your custody claim, as it could be viewed as abandonment. In some states, you may be considered “at fault” for the divorce.7 You also may be unable to return to your home until property is divided. In my experience, I have known couples that stayed together in their home during the divorce for the sake of their children or because of financial concerns. However, this does not work for everyone and is only advisable where domestic violence is not an issue.
Have I Talked to an Attorney?
Talking to an attorney is one of the most important things you should do before filing for divorce. The laws on divorce vary by state and change regularly. An attorney can helping you navigate the landscape of family law.
If your case is complex and there are children involved you may want to consider hiring a family law specialist that is certified by your state Bar Association. The American Academy of Matrimonial Lawyers is an organization with a rigorous screening procedure,8 which admits only qualified specialists and also provides a national directory of family law specialists online.
Given the scope of depth and complexity of family law you do not want to be left scrambling to find an attorney in an effort to be the first one to file for divorce.
- Questions to ask your divorce attorney: During your consultation, you should ask about strategy and costs. Be sure to ask what costs are expected you need to hire experts such as forensic accountants or psychologists.
- Legal separation vs. divorce: An attorney can help you understand the difference between legal separation and divorce. Legal separation varies by state. For example, New York law requires an agreement in writing by the parties,9 which they cannot write themselves. Legal separation is a term of art in the legal field — you cannot simply be “legally separated” by moving out. The statutory definitions vary from state to state, but the main difference is you cannot re-marry while you are legally separated. There are benefits associated with legal separation opposed to divorce that you should discuss with your attorney, including tax and insurance benefits.10 Additionally, legal separation is a precursor that can help you decide if divorce is the right choice.
- Division of marital property: You should discuss with your attorney how assets are divided in your state’s divorce courts. In a community property state like California, the marital property is divided equally at the time of divorce, unless otherwise decided in a premarital agreement. All property acquired during the marriage is presumptively community property and all property you owned before the marriage is separate, meaning whatever you owned before the marriage remains yours.11 The division of property is often a contested issue during the divorce and an attorney should be able to explain the basic principles of your state and help you build your case. It is important to understand how your property is characterized if you chose to proceed with divorce because it will help you determine if you need to file a lis pendens (see below for more detail). The American Bar Association family law quarterly publishes an outline the law regarding property division by state.12
- Premarital/Prenuptial agreement: A premarital agreement is entered into before marriage and protects your assets at the time of divorce.13 If you have a premarital agreement, it is important to provide it to your attorney so they can better explain how this affects your divorce and if it is controlling. The premarital agreement may itself be contested during litigation.
- Extramarital affairs: Before you discuss any extramarital affairs with anyone else, you should first consult your attorney, as adultery is illegal in 23 states.14 Admitting your extramarital affair could cost you additional alimony payments and hurt your custody claim.
If Divorce is the Only Option, Am I Prepared?
If after following the steps above you decide divorce is your only option, make sure you are prepared for what lies ahead, which may include fighting for custody of your children and pets, protecting your property, and securing your bank accounts. Take steps to protect everything that could be liquidated by your spouse that is valuable to you. This includes personal property. Prepare by getting your finances and documents in order.
- If you have children, prepare for a custody battle: First and foremost, the judge handling your case will ultimately determine what is in the best interest the child. While negotiating custody with your spouse is recommended so as to not escalate the battle, in the end the judge will preserve the status quo of the child’s existing life and your attorney can only help persuade the judge as to why it may be better for the judge to change the status quo. While the conventional wisdom is to keep the custody litigation to a minimum it can become all out warfare if the spouses are at odds and there are other factors operating such as adultery, finances, and property disputes. If you find yourself in a situation where the custody battle will be difficult, you need to hire an attorney with experience with child custody cases. For additional guidance on custody battles please refer to our guide on divorce and child custody.
- Consider a lis pendens: According to the Illinois statute on lis pendens,15 the motion “gives constructive notice to any person who acquires a lien or an interest of any type in that property, that there is a pending dispute over the property, and that person shall take the property subject to whatever the outcome of the lawsuit shall be.” In order to protect your assets, you may want to consider filing a lis pendens to prevent your spouse from selling your property during the divorce until the assets are divided.
- Freeze or close any joint credit cards/joint home equity loan: If you are not the primary account holder, you will likely need that person’s social security number before making any changes. Consult a representative from your bank or credit card company to see what the procedure is to split an account during a divorce.
- Close joint bank accounts & open new ones in your name: Be aware, in community property states all money earned during marriage is presumptively community property unless otherwise agreed to. Thus, before you close any joint accounts, make sure you speak with your attorney to ensure you are not hiding assets that could belong to both you and your spouse and end up hurting your case.
- Change the name on your utilities and other bills: If you remain in the family home but the bills are not in your name, you will need to change the name on your utilities. Before changing the name on your utilities, you should find out your credit score and how this will impact your ability to change the name on your utilities. Some companies may require a deposit which may not have been required if your spouse had a higher credit score.
- Who gets custody of the family pet? Pets are considered property and are treated as such during divorce. Therefore, who gets the family pet may have already been set out in a premarital agreement. If you do not have a prenuptial agreement then it will be up to the court to determine pet ownership. Consider the following questions with your attorney to build your case for pet ownership.
- Did you own the pet before the marriage? If so, then the court will likely decide to give the pet to you
- Who cares for the pet? If you make a strong argument you pay for the food, and ensure the pet’s health and safety, then it is only logical that you should keep custody.
- If you have children, where will they live? You could argue that it is in the best interest of the children to allow them to have the pet wherever they are living.
- Whose lifestyle is better suited to own a pet? It could be that your spouse travels more often than you do for work — you could argue you are better suited to take care of the pet.
Divorce is not a decision to be taken lightly. If you are considering divorce, talk to a counselor or psychologist to make an attempt at repairing your relationship. But most importantly, make sure you and your children are not in harm’s way, as divorce can create tension and lead to domestic abuse.
If divorce is the right step for you, be as prepared as possible to protect what’s important. Talk to a qualified family law attorney to find out about the divorce process and make sure they address all your questions regarding finances, property, and custody if applicable.
If you need to hire a divorce lawyer, check out our curated lists of the best attorneys in cities across the country:
Disclaimer: The materials provided in this article are for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the links contained within the article do not create an attorney-client relationship between the author and the user or browser. You should contact your attorney to obtain advice with respect to any particular issue or problem.